In this episode of "Shades of Freedom," guests Daryl Atkinson (Forward Justice) and Jeremy Travis (Arnold Ventures) join us to discuss the new Square One Project report, "The Power of Parsimony." If you are concerned about overincarceration, sentencing reform, and our culture of punishment - as meted out by the justice system, and in the added punishments which follow incarceration - this is the podcast for you.
While there may be relatively few underlying concepts that liberals and conservatives might agree upon related to the justice system, perhaps one of them could be that justice should be parsimonious – defined as the government being authorized to exercise the lightest intrusion possible on a person’s liberty that is necessary to achieve a legitimate social purpose. In this light, maybe there could be broad agreement that, for example, excessively long sentences for relatively minor crimes might fail this test.
In this episode of Shades of Freedom, guests Daryl Atkinson (of Forward Justice) and Jeremy Travis (of Arnold Ventures) join us to discuss the new Square One Project report, The Power of Parsimony. If you are concerned about overincarceration, sentencing reform, and our culture of punishment - as meted out by the justice system, and in the added punishments which follow incarceration - this is the podcast for you.
Daryl V. Atkinson is the Co-Director and Co-Founder of Forward Justice, a nonpartisan law, policy, and strategy center in North Carolina dedicated to advancing racial, social, and economic justice in the U.S. South. He also serves as a member of the steering committee for the Formerly Incarcerated, Convicted People & Families Movement, a national network of civil and human rights organizations led by directly impacted individuals committed to seeing the end of mass incarceration, America’s current racial and economic caste system.
Prior to joining Forward Justice, Daryl served as the first Second Chance Fellow for U.S. Department of Justice (DOJ). While at DOJ, Daryl was an advisor to the Second Chance portfolio of the Bureau of Justice Assistance, a member of the Federal Interagency Reentry Council, and a conduit to the broader justice-involved population to ensure the DOJ heard from all stakeholders when developing reentry policy. Daryl previously served as the Senior Staff Attorney at the Southern Coalition for Social Justice (SCSJ), where he focused on drug policy and criminal justice reform issues, particularly removing the legal barriers triggered by contact with the criminal justice system.
In 2014, Daryl was recognized by the White House as a “Reentry and Employment Champion of Change” for his extraordinary work to facilitate employment opportunities for people with criminal records. Daryl received a B.A. in Political Science from Benedict College, Columbia, SC and his J.D. from the University of St. Thomas School of Law, Minneapolis, MN.
Jeremy Travis joined Arnold Ventures after serving for 13 years as president of John Jay College of Criminal Justice at the City University of New York (CUNY). Under Jeremy’s leadership, John Jay became a senior liberal arts college at CUNY, significantly increased the number of baccalaureate students, created the CUNY Justice Academy to serve community college students, and joined the prestigious Macaulay Honors College.
Prior to his time at John Jay, Jeremy was a senior fellow with the Justice Policy Center at the Urban Institute. Before that, Jeremy served as director of the National Institute of Justice (NIJ). At NIJ, he established major initiatives to assess crime trends; evaluate federal anti-crime efforts; foster community policing and new law enforcement technologies; advance forensic sciences; and bolster research on counter-terrorism strategies.
Jeremy’s career also includes his role as deputy commissioner for legal matters for the New York City Police Department (NYPD); chief counsel to the U.S. House Judiciary Subcommittee on Criminal Justice; special adviser to New York City Mayor Edward I. Koch; and assistant director for law enforcement services for the Mayor’s Office of Operations. In addition, he was special counsel to the police commissioner of the NYPD.
He is the author of But They All Come Back: Facing the Challenges of Prisoner Reentry, and co-editor of both Prisoner Reentry and Crime in America and Prisoners Once Removed: The Impact of Incarceration and Reentry on Children, Families, and Communities. He earned his J.D. and M.P.A. from New York University and his bachelor’s degree from Yale College.
As a 501(c)(3) nonprofit organization, The Aspen Institute is nonpartisan and does not endorse, support, or oppose political candidates or parties. Further, the views and opinions of our guests and speakers do not necessarily reflect those of The Aspen Institute.
Visit us online at The Aspen Institute Criminal Justice Reform Initiative and follow us on Twitter @AspenCJRI.
August 17, 2021
Copyright 2021 Aspen Institute Criminal Justice Reform Initiative
Today's guests on Shades of Freedom are Daryl Atkinson, Co-Director of Forward Justice, and Jeremy Travis, Executive Vice President of Criminal Justice at Arnold Ventures. Both are affiliated with the Square One Project of Columbia University's Justice Lab.
Daryl Atkinson (00:19):
Liberty interests of people are so important that the State only intrudes when necessary, and when they do, they intrude with the lightest touch, the lightest intervention to a true, to achieve a legitimate State purpose, right? To do more is causing harm, to do more is causing violence, to do more is causing pain.
Dr. Douglas E. Wood (00:47):
Welcome to Shades of Freedom. I'm your host, Douglas Wood, Director of the Aspen Institute's Criminal Justice Reform Initiative. Today's guests are Daryl Atkinson and Jeremy Travis. Daryl is currently the co-director of Forward Justice, a law policy and strategy center dedicated to advancing racial, social and economic justice in the US south.
Forward Justice serves as a strategic partner for non-profit organizations, coalitions and networks at the forefront of movements organizing for a more just, equitable, and free South.
Jeremy was the fourth President of John Jay College of Criminal Justice, and served for 13 years. While President John Jay became a senior liberal arts college, raised graduation rates, and launched several research centers on topics ranging from community safety to prisoner re-entry, to the role of prosecutors.
Jeremy is currently Executive Vice-President of Criminal Justice at Arnold Ventures, where he leads a team that is implementing reform strategies focused on policing, pre-trial justice, community supervision, prisons, and reintegration. Daryl and Jeremy, welcome to Shades of Freedom.
Jeremy Travis (02:01):
Daryl Atkinson (02:03):
Thank you for having us, Doug.
Dr. Douglas E. Wood (02:03):
You both have just published a powerful paper titled The Power of Parsimony for the Square One Project. Before we talk about the paper, Jeremy, can you tell us about the Square One Project, and Daryl, how did you get involved in this work?
Jeremy Travis (02:18):
Well, I'm happy to. The Square One Project was founded three years ago as a national effort to try to, as we say in our tagline, reimagine justice. The goal is to bring together thought leaders, people who are at the forefront of rethinking about justice issues around the country, in the hopes that as we go through a time of reckoning and a time of deep thinking about how this system has gone tragically off course, we can plant some seeds, some new ideas about ways to think about what the world should look like in the future.
Dr. Douglas E. Wood (02:57):
And Daryl, how did you get involved in Square One Project?
Daryl Atkinson (03:00):
Well, I've long admired Jeremy and Bruce's work, the two Co-Chairs, and I can remember reading Roadmaps To Reentry, they all come home. When I had recently gotten out of prison and could think about like, "Man, I would love to be a part of working on these issues." So getting a chance to do that professionally is really gratifying.
Daryl Atkinson (03:29):
As far as the substance of what Square One is about, at Forward Justice, we work with social justice movements that we think are at the forefront of ushering in a third reconstruction, right? So you think about the first one, 1865 to 1877, and what some people call the second one, 1959 to 1971. We want to usher in the third one.
Dr. Douglas E. Wood (03:57):
So for our listeners, what is the Principle of Parsimony? And if you could please begin by talking about the historical philosophical underpinnings of the principle?
Daryl Atkinson (04:09):
I see Jeremy pointing to me, so I guess I'll riff a little, I'll start off a little bit. I think in its most simplest form, we think about what is the restraint tool that we use with the State, right? Particularly when we're thinking about the State, the restraint tool that we use with the State when they want to impose sanctions for breaking the social contract, what is that restraint tool?
Daryl Atkinson (04:42):
And we wanted in many ways, drawing reasoning by analogy from the medical community, we really wanted to kind of serve as a Hippocratic Oath for the legal community, that liberty interests of people are so important that the State only intrudes when necessary. And when they do, they intrude with the lightest touch, the lightest intervention to a true, to achieve a legitimate State purpose. To do more is causing harm, to do more is causing violence, to do more is causing pain.
Daryl Atkinson (05:23):
And if we had this kind of two-prong test to be able to evaluate various public policies that go along the criminal legal continuum, we think it would produce fair or juster, more equitable outcomes.
Dr. Douglas E. Wood (05:38):
Mm-hmm (affirmative) Jeremy, would you like to add to that?
Jeremy Travis (05:44):
So the principle of parsimony finds its articulation in many documents, legal documents, the Model Penal Code talks about applying the least restrictive alternative, that's a parsimonious principle. The constitution talks about forbidding excessive fine and excessive bail, forbidding cruel and unusual punishment.
Jeremy Travis (06:05):
Those are articulations of the principle of parsimony, but when it comes to the sentencing powers, in particular of the State, and the ways in which we have put so many people in prison and jail, and ramped up the use of prison as response to crime, we have violated this principle at the very core, because it has not exercised as a tool of restraint as Darrell so aptly said.
Jeremy Travis (06:29):
And when you think about the deprivation of liberty, that's at the core of mass incarceration. The principle has been trampled upon by our legal system for now, half a century. And then you go back further to the history of the country, and we hope to give new power to this principle because we think it'll help us come to a reckoning with the damage done by the criminal justice system.
Daryl Atkinson (06:56):
It is an old concept. I think the added intervention that we are offering to this old concept is the necessity of the reckoning. We cannot have a valid social contract if both sides of the agreement are not meeting their obligations.
Daryl Atkinson (07:17):
So for example, at its most base level, social contract theorists premise that me and you, Doug, we give up some of our individual autonomy to the State, and in turn, the State offers us protection and the ability to thrive, right?
Daryl Atkinson (07:35):
And we then hold up our end of the bargain and say, "Okay State, we're going to follow your rules," right? But when it comes to certain groups in this country, that has never existed, ever, ever, ever in the history of the country. Indigenous folks, African Americans, there's never been a valid bargain, where both sides of the contract were holding up their end of the bargain. What's called in contract theory, this mutuality of obligations.
Daryl Atkinson (08:01):
America has never held up to its obligation to protect Black folks, Brown folks, indigenous folks. They've never held up to that. And so, before we can reimagine, we got to get that right, because otherwise people will have no confidence into the legitimacy of that very State.
Dr. Douglas E. Wood (08:21):
You talk of the cohesive exercise of State power in your paper. And ironically, it sounds similar to what George Nash called, "the omnipotent government and the naked individual," in his analysis of conservative intellectual movements in America since 1945. Does it surprise you at all that what you're talking about can in fact, be framed as a conservative idea?
Daryl Atkinson (08:45):
To me, that's the attractiveness of it, right? And for us, that's why we centralize liberty, and liberty to radical national lawyers, Guild type, is going to sound really different than liberty from the libertarian, but we can both land in the same place with regards to restraint tool on how much intervention the State should have into our lives, particularly when there have been violations of the social contract.
Jeremy Travis (09:23):
We were smiling here when you pointed out the congruence between this idea and conservative philosophy, because we get some pushback when we talk about parsimony, and particularly when we foreground liberty, because that sounds like a conservative talking point, and guess what? It is, and it's a good thing that it is, because liberty is a meeting place to talk about your individual liberty and to want protection against the coercive power of the State. This is a meeting place. This is a high ground place for people to meet.
Jeremy Travis (10:03):
I'm reminded of a column written years ago, by a conservative commentator, George Will, and he happened to be critiquing the death penalty. And it's interesting to read this as a conservative who was against the death penalty. And one of the pieces in that column was he said, "As conservatives, we should always be opposed to government programs that don't work."
Jeremy Travis (10:24):
Guess what? Mass incarceration is a government program that hasn't worked and has done a lot of harm, and done harm to individual liberty, in addition to families and wellbeing, and sense of self, and economic opportunity. But there's a core principle that should lie at the heart of our democracy, which is that we give power to the State, in return for the State using that power wisely and parsimoniously. And if the State doesn't do that, guess what? We have a right to complain.
Dr. Douglas E. Wood (10:54):
And just building on that, when you posed the question in your paper, asking, "Does the limitation on liberty serve a legitimate social purpose?" It reminds me in some ways of the strict scrutiny test, whereby you have a compelling State interest that doesn't violate constitutional rights. How is the principle of parsimony similar?
Daryl Atkinson (11:14):
So first, we talked about the two-prong test. First, is there deprivation and does that deprivation... Is it the smallest thing that we can do to get the desired result? So strict scrutiny, you got these fundamental rights. Now, once you've proven that the law has abridged a fundamental right, the burden then shifts to the government to offer a compelling interest of why they need to do what they do?
Daryl Atkinson (11:47):
The same can be applied to parsimony. You have the liberty deprivation. Now, we've got to look at, is this the smallest thing? Is this the lightest touch you could take to achieve your result? And so, it is very similar in that way, to that straight scrutiny analysis.
Jeremy Travis (12:06):
We didn't know that you'd gone to law school, Doug, but it's to see a legal analogy being used here. It's exactly the right one. And I think Daryl and I would say, forget strict scrutiny. Does the use of prison even pass a rational basis test? Is it really rational? That's where you can have an argument.
Jeremy Travis (12:27):
If you ramp up the standard of review to strict scrutiny or to the principle of parsimony, where the two-part test works, we think the use of prison fails. But there's another part of this that I just want to point out to our listeners, which is the parsimony principle doesn't just strike things down as saying it fails the parsimony test. It places a burden on government, on civil society, to find something better than whatever it is that you're striking down.
Jeremy Travis (13:01):
So if we think that incarceration, as currently practiced, is excessively applied in its duration, in its severity, in its inhumanity, it doesn't mean that there shouldn't be some measure of accountability for violating the social contract, but it really requires the State to do that which is least harmful. And at the same time, what are the better alternatives that might result in a community that is healed, victims that are healed, individuals who are coming out of that experience with a greater respect for the law of the State and their neighbors?
Dr. Douglas E. Wood (13:38):
I want to come back to the three areas you guys focus on in the paper, specifically, prison sentencing, collateral consequences, and solitary confinement. But before I ask that question, Daryl, can you tell us a little bit about how your own personal experiences have shaped your views on parsimony?
Daryl Atkinson (13:59):
Yeah. It isn't just an academic exercise, right? I was incarcerated and I would put forward, unnecessarily incarcerated. I didn't have to go to a cage. Society could have offered me another intervention for my first time, non-violent drug crime, to interrupt that behavior. Another intervention could have been offered, that didn't happen.
Daryl Atkinson (14:27):
Collateral consequences, still experiencing those, still... Right now, I'm barred in two different States. I'm litigating a case right now, where we're trying to overturn the felon disenfranchisement law in North Carolina. So 56,000 North Carolinians will have the right to vote, who are living in our communities. But if I move back to the State of Alabama, I can't vote because I was convicted of a crime that they deem a crime of moral turpitude, and I won't get my voting rights back.
Daryl Atkinson (14:57):
So I experience those firsthand, as well as solitary confinement while I was incarcerated. And so, the experiential aspect has definitely shaped my viewpoint about what is the proper role of the State in intervening in these matters? Is it even necessary? And I think it goes back to the... And I don't want to gloss over this point, where how we even define liberty.
Daryl Atkinson (15:25):
We define liberty as the right to be left alone. We need to leave more people alone in this society, both the breadth and the depth of the carceral logic is so wide and so deep, and its invaded, as we were talking about, Doug, in so many other aspects of just public life, education, healthcare, family relationships with regards to the foster care system. The carceral logic has just embedded itself in all of those various domains, and we need to completely step back and leave people alone if we don't have to intervene.
Daryl Atkinson (16:10):
And so that could look like... So what does that look like, Daryl? That could look like making a number of misdemeanors and other types of low level felonies, making them civil infractions. That may be the parsimonious approach to dealing with those type of behavioral issues, rather than putting them and thrusting them in the criminal justice system.
Dr. Douglas E. Wood (16:33):
So why did you focus on prison sentencing, collateral consequences, and solitary confinement in your paper? Why focus on those three areas?
Daryl Atkinson (16:41):
I think the three areas highlight the nimbleness of the principle in applying at different stages of the system. So sentencing, that's at the resolution of the criminal matter or that the State has brought against an individual defendant. Collateral consequences is after, you know what I mean? Where people really start filling those after that sentencing or conviction determination has been made. And they happen largely outside of our traditional criminal legal system setting. When we think about prosecutor defense and judge, collateral consequences are imposed largely outside of that setting.
Daryl Atkinson (17:27):
And then when you think about solitary confinement, that's really... As Jeremy said, that's really, to use euphemism, is really in the hole, right? You're in the darkest confines of correctional practices, if you will, when you are incarcerated inside.
Daryl Atkinson (17:44):
So I think it illustrates that it can be used at various points in our criminal legal system, which I hope has some utility.
Jeremy Travis (17:53):
And for each of them, this framework gives, I think quite, I'm going to say, shocking results because we would have a very different world if these were viewed seriously through the lens of parsimony.
Dr. Douglas E. Wood (18:09):
So you also talk in your paper about community-led crime reduction. Can you explain what you mean by that? And what other ways can communities utilize the power of parsimony?
Jeremy Travis (18:25):
I'll start on that. This framework, this principle provides an analytical tool for anybody who is working in basically, the court system, anybody in the legislature, any judge, but particularly for those who want to change the way we now operate. So by starting with community, as you did, Doug, what you're raising up is the value of this framework for activism.
Jeremy Travis (19:01):
And we don't expect people to march on the streets carrying big banners that say, "Parsimony now." It doesn't quite carry that way, but it's a way of thinking. So part of that, just to get to your specific question, Doug, is communities are now saying we want to see at the safety table, we want to be able to say to our government, mostly to the police, that we can provide a way to provide safety beyond what the police do, and actually, it may mean instead of what the police are doing.
Jeremy Travis (19:34):
That principle applies as well to community supervision. Why do we have probation agents thinking that they're responsible for somebody getting back on his feet after prison? But where did this idea come from? Why are we not co-producing safety and justice at a community level?
Jeremy Travis (19:50):
So the parsimony principle gives a way to demand better, to demand different, to demand more. And by that, I mean, sometimes less, by saying this system that we've created is harming our community. And we, as members of this community, under the social contract, we have a right to demand different.
Daryl Atkinson (20:14):
Yeah. I come from school of thought and training that people who're close to the problem know what they need. They know the solutions that they need. I think what we've offered here is maybe some language that can be used in settings for community members, that can help them advance their goals with policymakers and practitioners, and stakeholders.
Daryl Atkinson (20:42):
But the community, take George Floyd for example, was pointing the finger at the system and said, "That right there is too much. That's too much intervention. That's too much of a liberty deprivation." And I think they're doing that in a number of different domains.
Daryl Atkinson (20:59):
Hopefully our paper kind of gives some folks some academic and legal footing to put their ground on, put the stand upon when they're making those demands.
Dr. Douglas E. Wood (21:12):
And the other thing your paper does, and would love for you just to respond to this, is to suggest a thorough re-examination and reckoning with the justice system. Your thoughts on that? What you're talking about is not reform, you're talking about a transformation here.
Daryl Atkinson (21:31):
Absolutely. So I'll go back to the collateral consequence domain for a second, because it's where my head is. I've got a trial coming up in like three weeks, so I'm thinking about it all the time. The reckoning part comes in, take North Carolina for example, felon disenfranchisement did not exist until after radical reconstruction, as a direct response to limit the political power of Black folks and poor White folks, that it emerged after radical reconstruction.
Daryl Atkinson (22:05):
In evaluating whether the statute that currently denies people on probation and parole the ability to vote, I guess what we're saying, the reason reckoning is so important, you've got to reckon with that history of what were the original purposes and origins of this law? When we are thinking about now, the purpose that it could potentially serve in present day, right? You just can't erase all that history.
Daryl Atkinson (22:32):
And I think when we embrace that reckoning aspect of why did we even come up with this panoply of criminal laws? Was it racially motivated? Was it class motivated? Was it about ordering control of non-property owners? Maybe it's all of those things, but we've got to reckon with that before we can reimagine and move forward in a positive way.
Daryl Atkinson (22:58):
And that's where... I know we were saying, this is a unifying principle, that's where I do believe there will be some work from some non-traditional allies.
Dr. Douglas E. Wood (23:13):
So I have one last question, and that's the question that I ask all of our guests, so I would love for you both to respond. What does the phrase Shades of Freedom mean to you now and into the future?
Jeremy Travis (23:28):
Yes. Freedom to me right now means a lot in terms of people who are not free because they're behind prison walls, but I think the country has a long history of race based denials of freedom. And we need to remind ourselves that it's only really since the Second Reconstruction that there's been anything approximating a democracy in this country.
Jeremy Travis (23:57):
And to come to terms with that as a nation, and particularly to make this personal, as a White man, looking at that history requires an understanding of the value of freedom and the way in which that freedom has been denied. So we have a lot of work to do in this country. I think there're reasons to be hopeful right now.
Daryl Atkinson (24:20):
Yeah. It didn't hit me until you just asked the question, shades. When I think of shades, I'm thinking of different gradation, different hues, different flavors, if you will. And I think that's really what we've had in this country. There're some folks who've been free the whole while, and then there're others of us who've experienced different shades of it, different moments of freedom. You know what I mean?
Daryl Atkinson (24:49):
I would hope, man, that man, this is our chance to get this right. Can we finally get this right? Because to Jeremy's point, and we have all of these movements around now around kind of the erasure of history and what should and what shouldn't be taught in schools, but if we don't ever fully appreciate that latter point that Jeremy made, that our multi-racial democracy is fragile.
Daryl Atkinson (25:21):
It isn't something that's 200 years old. It's about 55 years old. And over those 55 years, we felt like hell about the rules and the terms of that multi-racial democracy. Can we finally settle this question? Because until we settle that question, we will never be able to get at the core of inequality.
Dr. Douglas E. Wood (25:43):
Well, thank you both so much. It's been a real pleasure. I hope many people read your paper on parsimony and apply it in communities, and we'll look forward to following your work with the Square One Project. Thank you both so much.
Dr. Douglas E. Wood (25:57):
Daryl Atkinson (25:58):
Thanks for having us, Doug.
Thanks for joining us for Shades of Freedom from the Aspen Institute's Criminal Justice Reform Initiative. We'll be back soon with more thought provoking guests, so please subscribe on your favorite podcast app.
This podcast was produced by Lynnea Domienik, with research assistance by Willem Patrick. It was edited by Ken Thompson. Special thanks to Christian Devers and Wanda Mann.
CJRI's programs are made possible by support from Arnold Ventures, the Bank of America Charitable Foundation, The Arthur M. Blank Foundation, the Chan Zuckerberg Initiative, and the Ford Foundation.